Due to the fact that it is of a non-binding character and that either partner may leave it any time extra-marital cohabitation or partnership is in a great many cases not given any recognition or acceptance by the rules of the German legal system. The lack of statutory rules and regulations therefore frequently causes problems when an extra-marital cohabitation is terminated.
1. Parental care and custody
As a matter of principle parental care and custody of a child of parents who are not married to each other is vested in the child’s mother alone. It is only in those cases where parents submit a declaration to the effect that they wish to practice parental care and custody together, or if a child’s parents do get married to each other, that a status of common parental care and custody will be reached.
2. Division of joint property
So far it used to be the governing principle that donations or payments of either partner to the other will not be compensated after their cohabitation partnership will have failed and is broken, regardless of the nature or kind of such donations or payments (such as, for instance payment of rent by one of the partners for an apartment which was rented by both partners, repayment of the other partner’s debts, etc.)
This jurisdiction which has so far been practised is, however, increasingly abandoned by the German Federal High Court of Justice in some of its domains. In cases where assets of considerable economic significance were generated and where it was apparent for one of the partners that the other partner pursued a certain purpose by his or her donation and where the denial of a compensatory claim is not reasonably acceptable, a compensatory claim following unjustified enrichment against the other partner who still holds such donation may enter into consideration.
3. Alimony and support
As a matter of principle partners in an extra-marital cohabitation do not owe each other any alimony or support.
It is only in cases where a child has been born issue of such a partnership that the parent who is taking care of this child may have a right to alimony from the other parent, if and as long as the child-raising parent cannot possibly be expected to engage in any gainful employment. Such cases are then governed by the same laws and regulations which apply to parents who are married to each other or divorced from one another.
4. Home / Tenancy Agreement
If a home or apartment which is used by both of the partners together was rented by one of the partners only, this latter partner can demand that the other partner move out of the home or apartment once the partners’ extra-marital cohabitation will have come to an end.
In cases where the home or apartment was rented by both partners it is both of them who are the landlord’s contracting partners, that is to say that they are both liable to the landlord for the full amount of the rent. If the landlord refuses to release one of the partners from the tenancy agreement then notice of termination of the tenancy must be given by both partners together. If either one of the partners refuses to give such notice of termination of the tenancy a Court action may be brought against the latter partner by the other partner so that such notice of termination of the tenancy will be received from the refusing partner after all.
It is especially in situations where the partners live in a status of extra-marital cohabitation and have intentions to jointly generate or earn property and assets (for instance the construction/purchase of a house or the establishment of a company) or if one of the partners makes considerable donations to the other partner (for instance by repaying such partner’s debts), that it is urgently recommended to conclude a covering contract in advance whereby the legal consequences which will come up at the time of the termination of their extra-marital cohabitation will be made clear by common consent of the partners. In such a situation our office has two certified qualified lawyers for family law who will be glad to assist you.